There ought to be law. Wait, actually there is: religious prayer and preaching by teachers has long been considered a constitutional no-no at public schools (not that it actually stops schools around the region I live in from engaging in such practices).

But here is an interesting story (thanks to David Schraub at The Debate Link for the pointer) about a New Jersey public school student who accused his high school social studies teacher of preaching religion in class. As David point outs, the teacher denied the accusation and the school was ready to believe him until the student produced a tape of the whole interchange (via the Star-Ledger):

Junior Matthew LaClair, 16, said history teacher David Paszkiewicz, who
is also a Baptist preacher in town, spent the first week of class
lecturing students more about heaven and hell than the colonies and the
Constitution.

LaClair said Paszkiewicz told students that if
they didn't accept Jesus, "you belong in hell." He also dismissed as
unscientific the theories of evolution and the "Big Bang."

Rather than the focus of this story where it should be - on the teacher who violated the Establishment Clause and then out-and-out lied about it - the teacher in question is likely, as another commentator points out in David's post, to gain hero status among certain groups and become a leading speaker on the evils of secular education and so-called "secular humanism."

It all just makes you want to throw up your hands and ask when will such teachers stop thumbing their noses at the Constitution and when will schools start taking the concerns of their students more seriously (sans taping).

Hoping to make a dramatic point by walking out of work during one of the busiest travel days of the year at one of the busiest airports in the country, the Engineers and Architects Association of Los Angeare is planning to have 200 LAX employees walk out of work today. As this UPI report explains:

A disgruntled union plans a one-day walkout at Los Angeles International Airport Sunday, one of the year's busiest travel days.

The Engineers and Architects Association, which represents more
than 7,500 city engineers, architects and other professionals, said it
was planning small, targeted strikes at different city departments on
different days in the weeks ahead, the Los Angeles Times reported
Friday. About 200 union members work at LAX.

It does not appear that the union has in the past had the leverage to make that much of an impact on city services, as a similar city-wide two-day workplace action in August did not obtain for the union the wage increases it sought. Indeed, the union has been working without a contract for two years at this point.

One of the unions in this country which has been able to sustain substantial power throughout even these lean years for the labor movement is 1199 United Healthcare Workers East. The union has a long, well-respected history, including being referred to by Martin Luther King Jr. at one point as "the conscience of the labor movement."

As with everywhere else in the country, these are tough times for hospitals and their workers in the State of New York. This article in today's New York Times highlights some of the challenges that the union and Governor-Elect Spitzer have to face in making health care more affordable and efficient in the state. The union is hoping that it and the new governor are on the same page, but as the article points out, there is a lot that remains to be seen:

Now the governor-elect and the union, led by its longtime president, Dennis Rivera,
are on something of a collision course as Mr. Spitzer seeks to overhaul
the state’s costly health care system, which is sure to include the
closing of several hospitals.

***************************************************************************************[T]he union is facing a new governor who must grapple with a $2.5
billion deficit next year, one who has promised to increase education
financing by billions of dollars, cut the number of uninsured New
Yorkers in half and reduce property taxes by $6 billion over three
years.

To help pay for all of this, Mr. Spitzer has said he
will broadly overhaul the state’s bloated health care system, which
soaks up more than a quarter of all state spending; his various
proposals could result in cuts of more than $1 billion annually in
state and federal funds.

*****************************************************************************************The first flashpoint will come Tuesday, when a special commission
appointed by Governor Pataki is to make public its recommendations on
hospital closings.

This is one of those stories that definitely has a stay-tuned flavor to it. It will be more than just a little bit interesting to see how this powerful union and the Democratic governor will work together to reform the health care system, while at the same time protecting the rights of hospital and other health-care workers throughout the state.

It comes as a big surprise to many employers when they learn that they are not
entirely free to decide which of their employees should be paid set salaries and
which should receive wages and overtime. Those decisions are governed by complicated
laws that hinge on the details of each individual employee.

The best way to explain the rules is by pointing to specific employees and then
describing exactly what about their jobs requires them to be paid salary or overtime.
The problem is common frames of reference: Where can you find employees who will
be known and recognized beyond their own provincial workplaces?

The answer, of course, is television. Homer Simpson, MacGyver, Dwight Schrute
(the weird guy from NBC’s The Office) and other TV characters are better teachers
of overtime exemption rules than most wage-and-hour attorneys.

And here's one example from the article:

Executive characters: exemptGruff newsman Lou Grant of The Mary Tyler Moore Show is arguably the best example
of an exempt manager because that is all you ever saw him doing: managing the plucky
reporters of WJM-TV in Minneapolis. He was the quintessential boss, his authority
absolute and unquestioned. He also never got his hands dirty doing day-to-day chores
that he had employees to take care of, meaning that he was never in danger of spending
less than half his time managing.

A British Airways employee who was required to take off her cross necklace when she went to work has caused a firestorm across England. This is from the Daily Mail:

British Airways backed down over its ban on workers wearing the cross after a hurricane of criticism.

Airline chief Willie Walsh ordered a rethink of the rule that barred
check-in worker Nadia Eweida from wearing a tiny cross at work.

The airline had faced four days of angry condemnation from an
overwhelming alliance of Cabinet ministers, 100 MPs, 20 Church of
England bishops and, finally, the Archbishop of Canterbury. Dr Rowan
Williams called its stance 'deeply offensive' and threatened to sell
the Church of England's £6.6million holding of
BA shares.

*************************************************************************************
The airline had insisted the cross was covered by rules which say jewellery must be worn out of
sight, beneath a uniform. But Mr Walsh said it was clear the policy had to change.

Quite a reaction. I am not sure the same thing would happen in this country as far as the extent of the public protest.

However, if this type of ban were instituted by an employer in the United States, it would be fairly difficult for them to show that a religious accommodation of the cross wearing was not possible or that allowing the cross to be worn would cause an undue hardship to their operations.

Of course, there may be a few business that have strict uniform or other appearance rules that may be able to withstand challenge as long as the dress policy were uniformly-applied and it could be shown that it was important to an employer's operation to have such a rule.

HR.BLR.com has this story today about how the Department of Health and Human Services (HHS) is asking employers to voluntarily commit to meeting four goals in the area of providing more information on health care costs and quality of services:

HHS Secretary Mike Leavitt says fundamental
information about healthcare quality and costs of services is largely
unavailable today to consumers, to payers, and to providers alike.
Without this information, it is difficult to make informed choices and
seek out the best quality at the most affordable price, which
contributes to higher healthcare costs overall, he says.

**************************************************************************************Leavitt emphasized that the initiative is
voluntary. Employers that agree to the four goals will be encouraged to
sign a support statement as part of a package of materials that is
being made available to employers and other healthcare stakeholders.
The four cornerstones are:

Encourage Adoption of Health Information Technology Standards
by supporting interoperable health information systems and products in
order to enable the availability and secure exchange of healthcare
information.

Increase Transparency in Quality
by implementing, or asking those with which supporters contract to
implement, programs to measure the quality of services provided by
doctors, hospitals, and other healthcare providers and making this
information available to health-plan enrollees.

Increase Transparency in Pricing
by implementing, or asking those with which supporters contract to
implement, programs to make available to health-plan enrollees the
overall cost or price of their care.

Promote Quality and Efficiency of Care by offering incentives that encourage and facilitate high-quality and cost-effective health care.

All this seems consistent with Health Savings Accounts (HSAs) and the consumer-driven model of health care that this administration prefers. Such a voluntary initiative will likely not do much for solving this country's health care crisis, but there is certainly nothing wrong about bringing some transparency to a system that often seems inscrutable to employees.

The only question now is whether there is enough incentive for employers to comply with this program.

Now, I am no rocket science on such matters, but it strikes me as a bit odd that doctor's workplaces only come in 5th on the list generated by WebMd and sponsored by the Clorox company, while accountants are second. They must be talking about actual offices and surfaces therein, and not where they actually perform their jobs (can't say I have seen an accountant or teacher lately with one of those Michael Jackson masks on).

In any event, lawyers come in 9th and Diane tells us that the major culprits for germs are phone, desks, computer keyboards, and computer mouses. I would have thought that just the ventilation systems make some larger workplaces especially unhealthy in this regard.

In any event, next time you visit your accountant, get your surgical mask ready.

Thanks for the heads up from the Labor Law Blog which points out that the National Labor Relations Board (NLRB) has vastly improved its website.

Among other improvements, the new site allows registered users to access the electronic docket of any case pending before the Board, provides more content in a more user-friendly format, and allows parties to e-file certain documents with the Board.

We applaud the NLRB for seeking to bring more transparency to its administrative processes and making it easier for parties to interact electronically with the Board through its new My NLRB services.

EarthTimes.org has word that IBM has settled another expensive overtime suit with a group of technology workers for $65 million (previous post when this case was initially filed back in January).

According to the story:

International
Business Machines (IBM) said it would pay $65 million to settle a
class-action lawsuit in which it was accused of illegally denying
overtime pay to a large group of technology workers.

Employees on behalf of whom the lawsuit was brought would now be paid
overtime dues according to rank and the number of hours worked, the
workers and the company agreed. The settlement has yet to receive the
approval of district court Judge Phyllis J. Hamilton.

The company had earlier maintained that the group of 32,000 workers,
classified as "Technical Services Professional and Information
Technology Specialists,” were not entitled to overtime pay.

Although the company thought that the workers were professional, specialized computer operators exempted from the FLSA overtime provisions, closer scrutiny established that they merely troubleshooted computer issues by following a manual.

A very expensive illustration why it is important for companies not to just rely on the title of a job when classifying employees for purposes of the FLSA. Instead, a functional analysis should be done to see if the employees in question exercise the requisite discretion and meet the other conditions for an exemption.

From my neck of the woods comes word that the Memphis City Council has passed a living wage ordinance for those business that contract with the city to provide services, with some important exclusions (via The Commercial Appeal):

In the 11-1 vote, the council sided with proponents who for months have
been pushing for a living wage, which in Memphis is considered to be
$10 an hour with benefits or $12 an hour without.

**************************************************************************The council already has approved living wages for all full-time city
workers and Tuesday a council committee approved extending it to
part-time and temporary city employees as well. The part-time worker
provision still faces the full council.

***************************************************************************The approved ordinance covers service contracts such as janitorial
services, but not employees working at the Cook Convention Center, the
Mid-South Coliseum and FedExForum. Council members said those venues
are jointly funded with the county, which has not approved a living
wage.

The restaurant exclusion also allows the city to exempt some
food service contracts that may simply cater one meal, for instance.
Council members said the city would be hard-pressed to try to force
national chain restaurants and hotels to pay higher wages to their
Memphis employees.

To the extent that the city ordinance requires covered private employers to provide health benefits as part of the living wage, there is at least an argument that such mandatory benefits may run into ERISA preemption because the law would adversely impact upon the administration of employee benefit plans.

The fact, however, that the ordinance allows for an option that does not require covered employers to provide benefits if they are willing to provide a higher wage rate may make the law less likely to have an adverse impact and cause it not to be subjected to ERISA preemption.

Baggage handlers for Northwest Airlines Corp. stopped working
briefly at the airline's Minneapolis hub on Wednesday in a dispute over
who will clean airplanes, but there were no major disruptions for
travelers.

Neither the airline or senior union officials would call the dispute
a work stoppage, a phrase that carries legal weight under labor laws.

*********************************************************************The dispute is over who will clean airplane cabins and lavatories.
In recent years it was done by the union that also represented
Northwest mechanics. Their strike in August 2005 sent the work went to
IAM baggage handlers, a bitter rival of the mechanic's union.

But a settlement of the mechanic's strike approved by a bankruptcy
judge on Tuesday allows Northwest to send that work to contractors -
and Northwest wasted no time in doing that on Wednesday.

Northwest clearly had the "right" to do what it did, but better communication with the IAM would have averted this Thanksgiving holiday situation.

Whistle-blowers tipped off the
government to $1.3 billion worth of fraud cases over the last year,
largely at hospitals or other health care providers, the Justice
Department said Tuesday.

In all, the department recovered $3.1 billion in settlements -
what prosecutors said was a record amount - from individuals and
companies during the 2006 fiscal year that ended Sept. 30.

Given the recent blow government whistleblowers took in Garcetti v. Ceballos in not having their official capacity speech protected by the First Amendment, it is good to know that other laws, like the False Claims Act, are still providing a mechanism to deter governmental fraud (not that this makes it less necessary to also have appropriate constitutional protections in place for public employees).

Of course, it is does not hurt that such whistleblowing cases provide significant financial incentives to individual whistleblowers, last year to the tune of $190 million.

Yet another public employee free speech case. But this one has an interesting twist: can a public employee claim First Amendment protections for speech that he claims he was fired for, but he never actually made?

Plaintiff Paul Scarbrough, the former elected school superintendent for Morgan County, Tennessee, was not appointed to the new position as the Director of Schools for the county system following the publication of a newspaper article which announced that he would be the featured speaker at a convention sponsored by a church with a predominantly homosexual congregation.

The district court dismissed the plaintiff's claim finding that because the plaintiff never went to the convention or spoke at the church, he had no First Amendment rights to protect.

The 6th Circuit reversed, disagreeing "with the conclusion of the district court that no speech occurred here. Scarbrough agreed to pray or speak before the Metro congregation. The Knoxville News-Sentinel and others reacted as though Scarbrough was going to make or did make the speech in question. Therefore, we will proceed to analyze Scarbrough’s case under the traditional [Connick/Pickering] tests."

I'm not sure this is the best reasoning in the world, but the outcome seems right. In any event, because there was a genuine issue of material fact
concerning whether the employee was terminated for giving this speech he never gave, the case was remanded back to the lower court to see if he could prevail on his First Amendment retaliation claim.

Entries can be on any topic in the field of employee benefits law. Submission are due by May 1, 2007 and there are two $1500 First Prizes, along with the chance to have the piece published in the BNA Pension and Benefits Reporter or BNA Tax Management Compensation Planning Journal.

Debra Davis of Reish Luftman Reicher & Cohen has written a helpful summary of the automatic enrollment provisions of the Pension Protection Act of 2006. Debra writes:

The Pension Protection Act preempts state laws that interfere with automatic
enrollment plans . . . if certain requirements are met. These requirements
include: (1) providing notices to participants who will be subject to automatic
enrollment; and (2) placing their automatic deferrals in a “qualified default
investment alternative” (known as a QDIA) if a participant does not direct the
investment of his account.

In order to obtain the benefit of preemption of state payroll laws (such as in
California, which prohibits withholding from an employee’s paycheck without
written consent), the notices must be sent to participants within a reasonable
period of time before the beginning of the plan year. Although a specific time
period is not provided in the PPA, a period of 30 days has been used by the PPA
for other “reasonable” periods of time. For calendar year plans, this deadline
would be December 1st.

You can read the rest of what Debra has to say about complying with this provision, as well as find other pertinent information on the PPA, in Reich's November Plan Sponsors Bulletin.

A woman’s position is eliminated while she is on maternity
leave. A father who takes time off to be with his kids is taken off
important assignments. A mother isn’t considered for promotion because her
supervisor thinks she won’t want to work any additional hours now that she has
little ones at home. A man is fired when he asks for leave to care for his
dying father.

All of these employees are facing Family Responsibilities Discrimination,
a rapidly growing area of employment law. FRD can affect pregnant women,
mothers and fathers of young children, and workers who take time off to care
for their aging parents. Attorneys who represent such employees now have a
groundbreaking resource for information about discrimination against workers
who care for family members.

WorkLife Law’s Guide to Family Responsibilities
Discrimination is the first treatise of its kind. Published by the Center
for WorkLife Law, the 160-page Guide provides a thorough overview of the
federal and state laws that can be used to protect workers who have family
caregiving obligations. It provides practice tips, an extensive
compilation of case law, and a special section on research about bias against
mothers. The Guide is in loose-leaf format to allow easy updating in this
rapidly expanding area of the law.

You can get ordering information for this important new employment discrimination treatise here.

David Oppenheimer (Golden Gate) has sent along, via his colleague Geoffrey England at the University of Saskatchewan, a new Report, written by Professor Harry Arthurs (pictured left), on the reform of the employment standards part of the Canada Labor
Code.

Geoffrey writes:

The details of the report deal with the reform of the employment standards part
of the Code, but, as interesting as these are, they pale in comparison with the
seminal analysis of the policy benchmarks of ensuring justice in the workplace
that Harry provides. There are two or three chapters where Harry establishes the
benchmarks, including the moral right to decent working conditions, harmony with
international standards, productive efficiency etc. . . . [T]he analysis is spectacularly brilliant; it is a template that can
be used in any area of labor law, be in collective trade union law, individual
employment law or human rights law.

The crucial point in the report is where [Arthurs] says that the moral right to
decency in the workplace trumps the employer's interest in productive efficiency
in those circumstances where the two interests collide.

Having met and listen to a presentation by Professor Arthurs at the Law & Society Conference this past July in Baltimore, I imagine he will have some important insights not only on Canadian Labour Law, but for American labor and employment law as well.

On the heels of a string of victories in Miami, Los Angeles and Boston
that have resulted in dramatic gains for families, more than 5,300
janitors in Houston won higher wages, more hours, and health insurance
in their first city-wide union contract. The contract will lift
hundreds of janitors out of poverty, more than doubling their income within 24 months
and guaranteeing secure affordable health care. Houston is the second
major victory for janitors in less than a year, and is being seen as a
major breakthrough in the South and for low-wage workers around the
country.

Gains were particularly significant on the wage front:

Janitors will see their wages rise by 126 percent over the course of
the contract-with an immediate 21% increase on January 1. Janitors pay
will increase to $6.25 an hour on January 1, 2007, $7.25 an hour on
January 1, 2008, and $7.75 by January 1, 2009.

The janitors made progress as well on the health care front, but changes are not due to take effect for another two years:

Houston janitors won individual health insurance at a cost of only $20
per month. Family insurance will also be available for a cost of $175 a
month. The health insurance will become available starting January 1,
2009.

Nevertheless, the SEIU and the Change to Win Coalition have achieved an important labor victory in state, and a region, not known for its support of unions.

New Polish-language newspapers are flourishing in Britain and
Belgium, France and Sweden, Ireland and Germany, catering to Polish
craftsmen, engineers, teachers, nurses, plumbers, architects, maids and
drivers. These newspapers are the lifeblood for newcomers seeking to
find cheap housing, ferret out Polish food shops and meet teachers to
learn their new language.

This is the “second” Poland, a diaspora
of 800,000 Poles estimated by officials here to have left the country
since it joined the European Union
in May 2004. The exodus is believed to be one of the largest migrations
by Europeans since the 1950s, when a wave of Irish crossed the Atlantic
to escape poverty.

But in Poland, this huge movement of people
has created a labor shortage so severe that the government may not be
able to spend the money that is due to begin arriving in January from
the European Union for projects like improving roads and the water
supply.

And it appears that one of the main culprits for the lack of labor in Poland is, "the mismatch between jobs
and workers. Krystyna Iglicka, a migration expert and sociologist at
the Center for International Relations in Warsaw, says that Poland’s
education system failed in the 1990s to train enough skilled workers,
including engineers and craftsmen."

From a comparative labor law standpoint, there are certainly some important lessons here for our own American labor situation.

TaxProf Blog is a well-deserved A-List Blog, meaning that it is part of the "The Very High Authority Group," with 500 or more blogs linking in the last 6 months according to Technorati.

Workplace Prof is a B-List Blog, meaning that it is part of:

The High Authority Group (100-499 blogs linking in the last 6 months)
The third group represents a decided shift in blog age while not
blogging much more frequently than the last. In keeping with the theme
of the maturation of the blogosphere, it seems evident that many of
these bloggers were previously in category two and have grown in
authority organically over time. In other words, sheer dedication pays
off over time.